International Law and Peace Negotiations
The Global Justice Academy has launched its Student Ambassadors programme for the 2015-16 academic year. Rosie Ireland and Siobhan Cuming are both students on the LLM in Human Rights. As GJA Student Ambassadors, they co-authored this report on a recent seminar by Phillip Kastner.
In this report we summarise the key points made by Professor Phillip Kastner (University of Western Australia) at a seminar on 9 October titled ‘The Role of International Law in the Context of Peace Negotiations.’
International Law and the Resolution of Internal Armed Conflicts
Today, internal armed conflicts are significantly more prevalent than inter-state conflicts. The resolution of internal armed conflicts is generally more complex than inter-state conflicts; involving a higher level of interdependence and giving rise to a multitude of issues.
Peace agreements are frequently the preferred form to resolve internal armed conflicts. A specific legal regime for internal armed conflicts has not yet developed; law is side-lined because peace agreements have been viewed as predominantly ‘political’ negotiations. It is clear, however, that these negotiations do not take place in a legal vacuum; the peace agreement itself is effectively a legal document.
International law provides a normative framework that can be used by the negotiating parties that to some extent transcends the specific conflict. This legal normative framework relates not to specific legal norms, but to the processes and actions of legal actors during the negotiations. Seen in this sense, law can make a more useful contribution in this context.
Professor Kastner adopts a socio-legal pluralistic understanding of law. He views law as arising from a process of human interaction that is constantly changing and being re-negotiated. He refrains from proscribing specific norms and instead looks at a set of case studies which allow him to address a greater variety or normative phenomena. Nonetheless, it is important to reach a state where the law is more constructive and where better understanding of legal dynamics can facilitate the possible solutions of internal armed conflict
Peace mediators are key players in the resolution of internal armed conflicts. This role can be taken on by many different actors; States, regional organizations, the UN or other international organizations, faith-based actors, and, increasingly, NGOs concerned with the resolution of armed conflicts.
The facilitative approach of mediation is typically employed by NGOs or smaller states whilst the interventionist approach (which may even push the definitional limit of mediation) is more often used by more powerful states that have the ability to impose their will.
Peace negotiations are inspired by external normative influences and are consciously or unconsciously brought into play and some actors may even have strong normative ambitions. The key point is that a negotiation never has a complete absence of normative beliefs.
A key normative trend is that of neutrality and impartiality. Though these principles can be taken for granted, studies have shown that some mediators who are not wholly impartial or neutral may be able to bring more to the table due to their special relationship with one of the actors.
Conflict Related Justice Institutions
Finally, Professor Kastner’s related research project looks at the idea of how we can engage with the past and its relationship with the future in the context of what is traditionally termed ‘transitional justice’. He has tried to look closely into unofficial institutions since there is a marked tendency in theory and practice to overemphasise the importance of state-based institutions. There is a need to broaden our perspective by taking into account the different ways of contending with the past that still have an important normative impact.